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HARRIS v. CITY OF NEW YORK

United States District Court, S.D. New York


May 24, 2004.

SHAWN HARRIS, Plaintiff, -against- CITY OF NEW YORK, Defendant

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

MEMORANDUM OPINION

Defendant the City of New York has moved to vacate the "Judgment Under Fed.R.Civ.P. 68," signed by this Court on April 14, 2004. For the reasons set forth below, the motion is granted.

Prior Proceedings

  On March 9, 2004, the defendant served on plaintiff Shawn Harris ("Harris") an Offer of Judgment pursuant to Fed.R.Civ.P. 68, allowing Harris to take judgment against it for the sum of $15,001.00, together with reasonable costs and attorneys' fees accrued to that date. While both parties are in agreement that the offer was accepted by Harris on March 15, 2004, the Offer of Judgment was never filed.

  On March 24, 2004, Harris served on the defendant a "Notice of Settlement of Proposed Judgment and Judgment Under Fed.R.Civ.P. 68." That Notice was also not filed with the Court. Before the defendant was aware that the Notice was not filed with the Court, defendant requested until April 1, 2004 to review the proposed judgment and make objections, if necessary. When defendant was told by plaintiff that the Notice had not been filed with the Court, the request for more time was withdrawn.

  On April 12, 2004, Harris filed a "Judgment Under Fed. Civ. P. 68" with the clerk of court. Neither Harris nor the defendant has stated that notice of the judgment was given to the defendant. The judgment was signed by the court on April 14, 2004.

  After receiving notice that the judgment had been signed, the defendant wrote to the Court on April 16, 2004, requesting that the judgment be vacated because the judgment signed by the Court did not mirror the Rule 68 offer of judgment. After an exchange of letters, argument was heard on the motion on May 19, 2004, at which time the motion was deemed fully submitted.

 Discussion

  Although the defendant did not denominate its request under a particular Federal Rule of Civil Procedure, it will be deemed a motion pursuant to Rule 60(b). Federal Rule of Civil Procedure 68 provides, in relevant part:

If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment.
In this case, the procedure specified by Rule 68 was not followed by either plaintiff or defendant, because "the offer and notice of acceptance" were never filed with the court. While the phrase "either party may then file," might appear to make filing after acceptance optional, Rule 6 must be read in conjunction with Rule 5(d), which requires that "[a]11 papers after the complaint required to be served upon a party . . . must be filed with the court within a reasonable time after service."*fn1

  Harris argues that he followed the procedure specified under Local Rule 77.1(a), which permits other parties three days to offer a counter-proposal of judgment. However, Local Rule 77.1 is not applicable in the Rule 68 context because according to the plain language of Rule 68, the actual offer is to be filed, together with notice of acceptance, and judgment may be entered by the clerk based only on those documents. Similarly, it was improper for the defendant to make objections to Harris's proposed judgment, rather than filing the actual offer.

  The purpose of Rule 68 "is to provide an efficient and neutral means to settle litigation, irrespective of the nature of the underlying disputes." Marryshow v. Flynn, 986 F.2d 689, 698 (4th Cir. 1993); see also Marek v Chesny, 473 U.S. 1, 5 (1985) ("The plain purpose of Rule 68 is to encourage settlement and avoid litigation."). If, following the acceptance of a Rule 68 offer, both parties were to engage in the process of serving proposals and counter-proposals prior to entry of judgment, the purposes of the rule would be undermined.

  Because the post-acceptance procedure specified by Rule 68 was not followed, the judgment signed on April 14, 2004 is vacated. The parties are directed, pursuant to Rule 68, to file within ten (10) days the offer and notice of acceptance together with proof of service thereof. Any application for attorneys' fees by plaintiff may not be made until the judgment has been entered.

  It is so ordered.


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